Taking a bad idea and making it worse: An ancillary copyright in snippets disguised as a neighbouring right for publishers

Shortly after Vice-President Ansip broke news by announcing a public consultation at the Lisbon Council on 14 March, the Commission followed suit with the official public consultation. The new consultation on an ancillary right for news publishers and freedom of panorama surprised many, and was shortly followed by the launch of a campaign website from major news publisher associations.

Why again pick up on a universally condemned idea? Over the last two years, the introduction of ancillary copyright has faced mounting opposition: decision-makers, businesses, associations, academics, users and the wider community have already expressed their concerns and provided evidence of how the Spanish and German examples have failed (i.e. open letters, coalition letter opposing controversial amendment on ancillary copyright, coalition letter opposing ancillary copyright for pictures, tools to facilitate answering to public consultations which collected more than 10.000 responses etc). Asking the same respondents to deploy such near-identical effort again, only a few months after another consultation, the scope of which included copyright reform, closed on 6 January, could well discourage many of them from engaging in this second consultation, either at all or in a thorough manner; in turn, this could lead to an unbalanced conclusion following the consultation, if (for example) the contribution of any specific participant group were inappropriately to outweigh the inputs of others. Another potential issue is to demonstrate the relative importance attributed to the various categories of respondents, which will range from small but powerful lobby groups to large numbers of dispersed individual members of the wider community.

Should the rebranding of the “link tax” or “ancillary right” as a “neighbouring right” reassure us? According to the Commission, this isn’t only about the Spanish or German examples – rather, it’s about treating publishers on a par with record labels, and giving them a full blown ancillary right covering not just snippets but also every other copyright uses. This move is intended to distance the debate from the strong opposition so clearly voiced against previous attempts.

The expanded “publisher ancillary right” is more worrying than previous attempts – not less. Changing the terminology could lead some readers to conclude that the risk of ‘breaking the internet’ is no longer there. However, the consultation effectively raises the perspective of an “ancillary copyright writ large”. This makes it not only as dangerous to the internet as the Spanish and German examples, but even a broader attack to the internet and how we use it every day. Adding a full blown neighbouring right for news publishers makes it worse, not better. It means adding an extra layer of rights requiring additional rights clearances; it impacts the level of private copy levies, and how such levies are allocated between journalists and publishers; it creates fresh obstacles to text and data mining – in addition to the other obstacles which already keep most of Europe lagging behind other countries.

Neighbouring rights are pre-internet copyright tools. Expanding them to publishers ignores the reality of the internet. For such a proposal to be even workable, it will be vital to apply a consistent and unambiguous definition for these purposes of the term “publisher”, as well as to eliminate the scope for entities wrongly to self-define themselves as publishers. In today’s world, millions of pieces of text are published every day on the internet. What does it mean to be a “publisher” in that context?

In November 2015, together with 28 other stakeholders, OFE signed a coalition letter addressed to Vice President Timmermans, asking for more transparency and calling for an enabling environment in which all stakeholders have the opportunity to express their views. Yet it’s not clear, from the unusual way in which this latest public consultation was launched, as well as from the framing of certain of its questions, that the Commission is necessarily taking full account of the voices of Internet users, news publishers, consumers, libraries, start-ups, online services and IT companies from all over Europe.

[Update]: On 3 May, an elaborated tool and answering guide have been made available by a coalition of EU digital rights groups, including Mozilla, Open Media, European Digital Rights Initiative (EDRi) and Copyright For Creativity. The answering guide aims to help any EU citizen navigate through the complex questions of the public consultation. For those who just want to express against a tax on hyperlinking, you can put your name on the letter that Save the Link will send to Commissioners Oettinger and Ansip.